Citation Nr: 0115441
Decision Date: 06/05/01 Archive Date: 06/13/01
DOCKET NO. 00-10 271 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for the cause of the
veteran's death.
2. Entitlement to Dependency and Indemnity Compensation
(DIC) under 38 U.S.C.A. § 1318 (West 1991 & Supp. 2000).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
P.B. Werdal, Counsel
INTRODUCTION
The veteran upon whose service this claim is based had active
duty from January 1943 to February 1945. The appellant is
his surviving spouse.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a December 1998 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida, denying as not well grounded the
November 1998 claim for service connection for the cause of
the veteran's death, and for DIC benefits under 38 U.S.C.A.
§ 1318.
REMAND
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law
redefines the obligations of VA with respect to the duty to
assist and includes an enhanced duty to notify a claimant as
to the information and evidence necessary to substantiate a
claim for VA benefits.
This law also eliminates the concept of a well-grounded claim
and supersedes the decision of the United States Court of
Appeals for Veterans Claims in Morton v. West, 12 Vet. App.
477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517
(U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had
held that VA cannot assist in the development of a claim that
is not well grounded. This change in the law is applicable
to all claims filed on or after the date of enactment of the
VCAA, or filed before the date of enactment and not yet final
as of that date. Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-
2100 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308
(1991).
Because of the change in the law brought about by the VCAA, a
remand in this case is required for compliance with the
notice and duty to assist provisions contained in the new
law. In addition, because the RO has not yet considered
whether any additional notification or development action is
required under the VCAA, it would be potentially prejudicial
to the appellant if the Board were to proceed to issue a
decision at this time. See Bernard v. Brown, 4 Vet. App. 384
(1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992)
(published at 57 Fed. Reg. 49,747 (1992)). Therefore, for
these reasons, a remand is required.
Benefits authorized by 38 U.S.C. § 1318 (West 1991) shall be
paid to a deceased veteran's surviving spouse (see §
3.54(c)(2)) or children in the same manner as if the
veteran's death is service connected when the following
conditions are met:
(1) The veteran's death was not caused by his or her own
willful misconduct; and
(2) The veteran was in receipt of or for any reason
(including receipt of military retired or retirement pay or
correction of a rating after the veteran's death based on
clear and unmistakable error (CUE)) was not in receipt of but
would have been entitled to receive compensation at the time
of death for a service-connected disablement that either: (i)
Was continuously rated totally disabling by a schedular or
unemployability rating for a period of 10 or more years
immediately preceding death; or
(ii) Was continuously rated totally disabling by a schedular
or unemployability rating from the date of the veteran's
discharge or release from active duty for a period of not
less than 5 years immediately preceding death.
The United States Court of Appeals for Veterans Claims
(Court) has held that a survivor of a deceased veteran is
eligible for DIC under section 1318(b)(1) if (1) the veteran
was in actual receipt of a 100% disability rating for the
statutory period of time; (2) the veteran would have been in
receipt of a 100% disability rating for such time but for CUE
in a final rating or Board decision; or (3) if under specific
and limited exceptions, the veteran was "hypothetically"
entitled to a 100% disability rating for the required period
of time. Marso v. West, No. 97-2178 (U.S. Vet. App.,
December 23, 1999).
According to the Court, consideration of whether the veteran
was "hypothetically" entitled to a 100% disability rating for
the required period of time can only be made for claims where
38 C.F.R. § 19.196 applies, i.e., for those "entitled to
receive" claims received prior to the March 1992 effective
date of section 20.1106, or where a veteran had never filed a
claim for VA benefits, and therefore no final VA decision
regarding the veteran's level of disability was made. See
Marso, supra (citing to Carpenter v. West, 11 Vet. App. 140
(1998) and Wingo v. West, 11 Vet. App. 307 (1998).
Effective January 21, 2000, VA amended 38 C.F.R. § 3.22(a)
(2000) and added other provisions relevant to this claim.
Those amendments more specifically defined the phrase
"entitled to receive." 38 C.F.R. § 3.22 (2000). Where a law
or regulation changes after the claim has been filed or
before the administrative process has been concluded, as is
the case here, the version most favorable to the appellant
applies. DeSousa v. Gober, 10 Vet. App. 461 (1997);
Karnas v. Derwinski, 1 Vet. App. 308 (1991).
In an effort to assist the RO, the Board has reviewed the
claims file and identified certain assistance that must be
rendered to comply with the VCAA. However, it is the RO's
responsibility to ensure that all appropriate development is
undertaken in this case. The records regarding treatment in
service consist of records pertaining to the veteran's
hospitalization from August 1944 to February 1945. It
appears there may be additional service medical records.
The official death certificate shows that the veteran died in
October 1998 due to asystole due to or a consequence of
congestive veteran due to or a consequence of chronic renal
failure. At the time of his death service connection was in
effect for rheumatoid arthritis, evaluated as 60 percent
disabling. The appellant in her substantive appeal makes
reference to the veteran's hospitalization for seven days.
This record is not on file.
Accordingly, this case is REMANDED for the following:
1. The RO should request the National
Personnel Center in St. Louis, Missouri
to conduct a search for any additional
service medical records.
2. The RO should furnish the appellant
the appropriate release of information
forms in order to obtain copies of all VA
and private medical records pertaining to
treatment since the veteran's release
from active duty until his death which
are not already of record, including the
records from Dr. Sutton who treated the
veteran in 1967 and Dr. Meredith.
3. The RO must review the claims file
and ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied.
4. Following any additional development
deemed appropriate by the RO, the RO
should readjudicate the appellant's
entitlement to service connection for the
cause of the veteran's death and for DIC
benefits under the provisions of
38 U.S.C.A. § 1318, to include the
revised 38 C.F.R. § 3.22(a).
If the benefits sought on appeal remain
denied, the appellant and the appellant's
representative should be provided a
supplemental statement of the case
(SSOC). The SSOC must contain notice of
all relevant actions taken on the claim
for benefits, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issue currently on appeal. An
appropriate period of time should be
allowed for response.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
ROBERT P. REGAN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).